Death penalty still on table

Grand jury given more time to weigh arson that killed kids

Robert Gavi, Times Union

By Robert Gavin

Updated 9:10 pm, Monday, October 28, 2013

Robert Butler, 27, of Saratoga Springs was charged with arson for allegedly setting a fire Thursday morning that left four people - including three children - dead in Schenectady. (Schenectady Police Department)

Robert Butler, 27, of Saratoga Springs was charged with arson for...

Firefighters and police at the scene of a house fire at 438 Hulett St. on Thursday, May 2, 2013 in Schenectady, NY. Police said that four of the five people pulled from a burning home early Thursday morning have died. Three children and one adult died. (Paul Buckowski / Times Union)

Firefighters and police at the scene of a house fire at 438 Hulett...

Alleged arsonist Robert Butler is lead from the holding area at Schenectady City Court May 7, 2013 after a brief appearance in court in Schenectady, N.Y. (Skip Dickstein/Times Union)

Alleged arsonist Robert Butler is lead from the holding area at...

The scene of a fatal fire on Hulett Street in Schenectady, N.Y., on Thursday, May 2, 2013. (Paul Nelson/Times Union)

The scene of a fatal fire on Hulett Street in Schenectady, N.Y., on...

Flowers are placed on the curb at the scene of a house fire at 438 Hulett St. on Thursday, May 2, 2013 in Schenectady, NY. Police said that four of the five people pulled from a burning home early Thursday morning have died. Three children and one adult died. (Paul Buckowski / Times Union)

Flowers are placed on the curb at the scene of a house fire at 438...

David Terry and Donavancq Duell, 11 months, were among the four fatal victims of Thursday's fatal fire on Hulett Street in Schenectady. Safyre Terry, 5, is being treated for burns. Layah Terry, 3, and Michael Terry, 2, also perished. (Courtesy Liz Dolder)

David Terry and Donavancq Duell, 11 months, were among the four...

Victims of Thursday's fatal fire on Hulett Street in Schenectday. Michael Terry, 2, left, Donavancq Duell, 11 months, center, and Layah Terry, 3, right, are said to have died in the blaze. Safyre Terry, 5, pictured center top, is being treated for burns. (Courtesy Liz Dolder)

Victims of Thursday's fatal fire on Hulett Street in Schenectday....

Firefighters and police at the scene of a house fire at 438 Hulett St. on Thursday, May 2, 2013 in Schenectady, NY. Police said that four of the five people pulled from a burning home early Thursday morning have died. Three children and one adult died. (Paul Buckowski / Times Union)

A federal grand jury will have two additional months to consider the potential death penalty case against Robert A. Butler on allegations he started a blaze that killed three of his ex-girlfriend's children and their father in Schenectady.

Butler, 28, of Saratoga Springs, is charged with arson resulting in personal injury and death for allegedly starting the fire that killed the victims and severely burned another child in 438 Hulett St. in Hamilton Hill during the pre-dawn hours of May 2.

The deadline to file an indictment against Butler, under provisions to guarantee his right to a speedy trial, had been Nov. 8. On Monday. U.S. Magistrate Judge Christian Hummel extended the deadline to Jan. 10 following a joint agreement between U.S. Attorney Richard Hartunian's office and defense attorneys for Butler.

Butler was initially charged in state court. Federal prosecutors took over the case on June 4. The initial period for the grand jury to file an indictment was extended once before until Nov. 8.

"We do want a thorough grand jury investigation," said William Easton, a Rochester-based attorney who is defending Butler against the possible capital charge. The federal public defender's office is also representing Butler.

"The more information, the better from our perspective," Easton said. "We want this grand jury to have access to everything."

Butler had lived in the Hulett Street home but was kicked out by Terry because Terry believed Butler had hit Jennica Duell, the mother of the children and Butler's ex-girlfriend, authorities said.

Court papers filed in U.S. District Court allege that Butler was motivated by revenge. A friend of Butler sent text messages saying Butler wanted to kill Terry and two other men in the home because he believed Terry had been "(messing) with his and Jennica's life."

On the night of the fire, Butler allegedly traveled from Saratoga Springs to Schenectady. On the way, the documents allege, Butler "said something about killing David Terry, or words to that effect."

Two alleged eyewitnesses identified Butler as the arsonist. A criminal complaint written by a federal investigator contends Butler told Schenectady police: "I didn't want to do it."

The complaint said a friend of Butler sent text messages just days before the blaze stating that Butler was about to "go to Schenectady to split some wigs" and that "Rob wants to kill."

The latest extension was granted, in part, to allow the defense team to present any facts and mitigating circumstances to federal prosecutors as they consider whether to bring the death penalty case against Butler, a decision that will ultimately be made by U.S. Attorney General Eric Holder.

Easton said there were several issues involving previous witnesses who already testified before the grand jury.

On July 14, the Times Union reported that Duell told the newspaper that she was asleep in Saratoga Springs during the blaze — not at the arson scene, as she testified under oath to the grand jury. Duell said she initially told Schenectady police that she was in Saratoga Springs, coming down from an LSD trip, but changed her story when officials did not believe her.